Democrats Must Reform the Electoral Count Act and Pass Comprehensive Voting Rights Legislation.
America is facing a democracy crisis in three parts. Voter suppression policies are making it substantially harder to vote in nearly every Republican-controlled state. Partisan gerrymandering threatens to cement minority-party rule in state legislatures and has heavily biased the House of Representatives toward the right. And, new election subversion tactics could enable conservative state legislatures to install the Republican nominee as president in 2024, even if they lose the electoral vote.
Put simply, the Republican Party is attempting to secure and retain political control by manipulating how votes are to cast, where those votes count and whether, at the end of the day, they even count at all. As democracy scholars, we believe the evidence is clear: protecting democracy requires policy change on all three fronts.
Yet some pundits are calling for voting rights and fair legislative districting to be dropped from the reform conversation. Their argument is that concern about voting rights and gerrymandering should take a backseat to a bigger threat — election subversion. But this argument rests on two faulty premises. One is about policy. The other is about politics.
Just as it would have been absurd to claim that Jim Crow was not a problem because civil rights were improving on average due to changes in northern states, it is similarly absurd to suggest that the expansion of voting access in some states makes up for voter suppression in others.
The policy premise is that concern about gerrymandering and voter suppression is overblown: that recent Republican attempts at voter suppression have not been very successful, and that GOP gerrymandering is falling flat in the 2020 redistricting cycle. Furthermore, some suggest expansions to voting rights in blue states like Washington and Colorado cancel out voter suppression in states like North Carolina. Compared to the threat of election subversion, some suggest, attacks on voting rights and biased district maps are really much ado about nothing.
But that is the wrong conclusion to draw. Political science research and legal analysis have uncovered much to be concerned about. Voter registration purges increased significantly after the U.S. Supreme Court struck down a key provision of the Voting Rights Act; between 2014 and 2016 alone, states removed a record near-16 million people from the voting rolls. Voter ID laws continue to impose large barriers on those without access to valid government-issued IDs — disproportionately low-income, minority, and transgender Americans. New laws are making it harder to request a mail ballot, restricting voter registration drives, removing ballot drop boxes in urban areas, and making it illegal to give voters food or water while they wait in line.
It is also not at all clear that, as some pundits have recently claimed, voter suppression laws “don’t have much of an effect.” It is true that voter ID laws, in particular, do not appear to have significantly depressed voter turnout like many advocates feared. But this may well be because grassroots groups have invested ever-greater resources to help voters learn about new requirements and, when necessary, procure the requisite forms of identification. The outcome may sometimes be “unchanged” turnout numbers, but only because one side had to work notably harder to overcome new barriers. Indeed, this is what political organizers plainly say is happening. And while the effects of recent voter suppression bills are sometimes tempered by evoking sufficient public anger to drive voters to the polls, experimental evidence suggests this backlash effect will not hold for young people, who are increasingly becoming the targets of the GOP’s suppression attempts.
A related argument is that it has gotten easier to vote in the United States, on average. This fact provides little solace for those concerned about the state of American democracy. The system of American federalism puts voting rights in the hands of state governments. There is a growing gap in voting access across states, with some states expanding it and some increasingly suppressing it. Just as it would have been absurd to claim that Jim Crow was not a problem because civil rights were improving on average due to changes in northern states, it is similarly absurd to suggest that the expansion of voting access in some states makes up for voter suppression in others.
The evidence is also clear that partisan gerrymandering is helping to entrench minority rule in the American political system. Research has long found that single-party control of legislative redistricting “dramatically benefits the party in charge.” But the maps drawn in the 2010 redistricting cycle by Republican state legislatures set new records for partisan bias. Recent scholarship finds that when Republicans gain control of a state’s district-drawing process, the average Republican House seat share increases by 9.1 percentage points in the next federal election, whereas no similar effect is found when Democrats take control. In the heavily gerrymandered state of Wisconsin, the Republican candidate for governor won less than half of the statewide vote in 2018, but Republicans still won 63 of the 99 state Assembly districts. The maps for the 2020 redistricting cycle in Republican-controlled states, while still incomplete, show little sign of change.
Multiple public letters from democracy experts — including one signed by more than 1,000 political scientists — view this as a do-or-die moment for voting rights and fair districting. These concerns are grounded in America’s troubling history of voter suppression. From the 1870s to 1965, Jim Crow laws successfully deprived generations of Black Americans of their constitutionally guaranteed right to vote. They did so not by banning Black votes outright but, rather, by imposing voting barriers such as poll taxes, literacy tests, residency requirements, and “grandfather clauses” that were particularly onerous for Black Americans. This targeted disenfranchisement campaign gave the American South, as the foundational political scholar V.O. Key once put it, “the most impressive system of obstacles between the voter and the ballot box known to the democratic world.” The lesson is so obvious as to feel strangely repetitive —yet clearly, some have not yet learned it: When those who wish to restrict the franchise are allowed to do so, they will succeed in keeping voters from the polls.
The pundits who want to put issues of voter suppression and partisan gerrymandering on the backburner are operating off a dangerously flawed political premise as well: that public fights over voting rights legislation and anti-gerrymandering laws take attention away from the threat of election subversion. By continuing to demand that the Senate ban the most pernicious forms of suppression and gerrymandering by passing the Freedom to Vote Act, their story goes, activist groups have preempted the possibility of Electoral Count Act (ECA) reform.
But this is not, for the most part, how politics works. Voter suppression, gerrymandering and electoral subversion are not in zero-sum competition for attention or legislative capacity. Democracy advocates who stress the importance of voting rights, fair districting and even campaign finance regulation are not downplaying the need for Electoral Count Act reform. Some pundits are eager to suggest that democracy activists’ multi-pronged strategy has been self-defeating, but the reality is much simpler: voting rights and redistricting reforms might never have had the support of two pivotal Democratic senators.
Minority Leader Sen. Mitch McConnell (R-K.Y.) recognizes that if Republicans continue opposing all democracy reforms, as has been their strategy for months, this could give Sens. Joe Manchin and Kyrsten Sinema the political cover they need to support amending the filibuster, which would, in turn, allow Democrats to finally outlaw the voting rights violations and partisan district-drawing that give Republicans a winning leg up. By hinting at the possibility that they would be in favor of reforming the Electoral Count Act, Republicans are hoping that Democrats — tired of fighting — will be happy with any progress they can get in this area. If the agenda instead narrows to only subversion, Republicans can continue biasing election outcomes in their favor, conveniently making it less critical for them to subvert the popular will in the first place. Democrats should not fall for it.
We understand the allure of focusing exclusively on election subversion. Unlike voter suppression and gerrymandering, subversion is a relative newcomer to the “rigging elections” playbook, and pundits like novelty. There is also something particularly dangerous-sounding about election subversion; nothing is more quintessentially authoritarian than overtly overturning the expressed popular will of the people.
To be clear, we firmly believe that Republican plans to exploit loopholes in the Electoral Count Act and subvert future elections deserve urgent attention, and congressional Democrats should promptly close these loopholes while they still can. As one of us (Grumbach) has thoroughly documented, the GOP has used its state governmental authority to erode the foundations of American democracy for the past 20 years. We have no doubt that, if given the opportunity to overturn election results in favor of Republican candidates, the party will opt to do so.
But calls to abandon the fight for voting rights and fair districting to focus singularly on reforms to the Electoral Count Act are misguided. Reforms to the ECA would make it harder to overturn election results — but that matters much less when those results are already structurally biased toward minority rule. Pro-democracy advocates cannot afford a piecemeal approach to reform in this moment of democratic crisis.
When considering the optimal political strategy for achieving democracy reform, pundits and policymakers alike must begin by acknowledging our troubling reality: the Republican Party has abandoned its commitments to democracy in favor of a win-at-all-costs political strategy. This is borne out in both anecdotal and empirical data. The Republican Party launched a concerted attack to delegitimize the 2020 presidential election. It continues to thwart efforts to hold the Jan. 6 insurrectionists accountable. In the past year alone, 19 states passed 34 restrictive voting laws. Republican legislatures have used the redistricting cycle to flip at least five House of Representatives seats from blue to red in the upcoming midterms. In fact, as Grumbach shows in his work, Republican control of state legislatures, not state-level polarization or party competition, is the most predictive factor for whether a state has a strong or weak democracy.
The two most basic criteria for democracy are the presence of political competition and the right of citizens to elect representatives of their choosing. On both fronts, American democracy is in grave danger. Now is not the time to sideline policy changes that would address voter suppression and partisan gerrymandering. Quite the contrary — we must prioritize these affronts to democracy now, before the nation’s sole pro-democracy major party loses control of the legislative and executive branches of government. If Democrats are serious about saving and strengthening American democracy, they must adopt a “both-and” approach to legislating. Frankly, they do not have the luxury of time to try any other strategy. This November, when Americans go to the polls to cast their ballots, control of Congress will hang in the balance. So, too, will the future of American democracy.
Charlotte Hill is a political scientist and research fellow at the Goldman School of Public Policy at UC Berkeley
Jake Grumbach is an assistant professor of political science at the University of Washington.
Hakeem Jefferson is an assistant professor of political science at Stanford University.
Adam Bonica is an associate professor in the Department of Political Science at Stanford University.